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In re Noah D.

United States District Court, Ninth Circuit

November 5, 2013

In the matter of Noah D., by and through his parent, Lisa D., Plaintiff,
v.
DEPARTMENT OF EDUCATION, State of Hawaii, Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION INTRODUCTION

DERRICK K. WATSON, District Judge.

Before the Court is Defendant Department of Education, State of Hawaii's ("DOE" or "Defendant") Motion for Reconsideration, filed on August 30, 2013 ("Motion"). Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After careful consideration of the Motion and the relevant legal authority, Defendant's Motion is hereby DENIED.

BACKGROUND

The parties and the Court are familiar with the factual and procedural background in this matter, and the Court does not fully recount it here. On August 20, 2013, the Court entered its Order Reversing and Remanding the Administrative Hearing Officer's July 11, 2012 Findings of Fact, Conclusions of Law and Decision (the "Order"). That Order disposed of Plaintiffs' appeal following a remand from this district court in Civil No. 10-297 AWT-BMK, directing the Hearings Officer to determine whether Defendant violated the Individuals with Disabilities Education Act of 2004 ("IDEA"), 20 U.S.C. ยง 1400 et seq. ("IDEA") by materially failing to implement Student's July 30, 2009 Individualized Education Program ("IEP"). The issue on remand was limited to the application of the materiality standard set forth by the Ninth Circuit in Van Duyn v. Baker School District 5J, 502 F.3d 811 (9th Cir. 2007).

In the August 20, 2013 Order, the Court ruled that:

Here, the implementation of furloughs was more than a minor discrepancy and violated the IDEA. The loss of 11 to 12 school days, and equally important, the disruption of the consistency of Student's educational program, prevented several IEP provisions from being implemented, including mainstreaming, socialization, and communication. Student's behavior program was not fully implemented and he could not receive the continuity of educational opportunities, services, and aids provided for in the IEP. The Court concludes that the failure to implement Student's July 30, 2009 IEP was material under the standard set forth in Van Duyn and denied Student a free appropriate public education. Accordingly, the Hearings Officer's decision to the contrary is hereby REVERSED, and Plaintiffs are the prevailing party.
To the extent Plaintiffs seek compensatory education or any additional remedy, the matter is REMANDED to the Hearings Officer for such a determination in the first instance.

Order at 15-16. The DOE now seeks reconsideration of this ruling.

DISCUSSION

This district court recognizes three grounds for granting reconsideration of an order: "(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice." White v. Sabatino, 424 F.Supp.2d 1271, 1274 (D. Haw. 2006) (citing Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir. 1998)).

Defendant offers four reasons why this Court should reconsider its August 20, 2013 Order:

1) The Court ignored controlling Ninth Circuit authority in N.D., et al. v. Hawaii Department of Education, 600 F.3d 1104 (9th Cir. 2010), by determining that furloughs "automatically" constitute a material failure to implement an IEP;
2) The Court improperly considered Student's regressive behavior at home in evaluating whether a "material failure" ...

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